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Neethling, Johann --- "Personality Rights" [2006] ELECD 199; in Smits, M. Jan (ed), "Elgar Encyclopedia of Comparative Law" (Edward Elgar Publishing, 2006)

Book Title: Elgar Encyclopedia of Comparative Law

Editor(s): Smits, M. Jan

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781845420130

Section: Chapter 48

Section Title: Personality Rights

Author(s): Neethling, Johann

Number of pages: 18

Extract:

48 Personality rights*
Johann Neethling


1 Recognition and basis of protection of personality rights
Personality rights recognize a person as a physical and spiritual­moral
being (Joubert, 1953, pp. 139 ff.) and guarantee his enjoyment of his own
sense of existence (Von Bar, 2000, p. 61). The modern concept of personal-
ity rights is firmly established in many legal systems but they do not have
the same views on the protection of these rights (ibid.).
In Europe some systems, such as German law, recognize a general right to
personality, from which all concrete rights of personality flow, as a general
clause for comprehensive personality protection (Neumann-Duesberg,
1991, pp. 957­8; Larenz and Canaris, 1994, pp. 491, 518­19; Van Gerven
et al., 2000, pp. 163 ff., 142 ff., 165­6; Von Bar, 1996, pp. 583­4; Helle, 1991,
pp. 6­7, 11). Others, for example France and Belgium, have and see no need
for the recognition of a general right to personality because they developed
a wide-ranging protection of personality rights on the basis of general
delictual principles (Kerpen, 2003, pp. 44 ff.; Van Gerven et al., 2000, pp. 57
ff.; Rogers et al., 2001, pp. 87­9; Schmitz, 1967, pp. 4­6; Guldix and
Wylleman, 1999, pp. 1589­94; Von Bar, 2000, p. 94). This is also the position
in South Africa (Neethling, Potgieter and Visser, 2005, pp. 39­59; Burchell,
1996, pp. 639 ff.). A third group, such as Austria, Holland and Liechtenstein,
recognize a general ...